KRAFT v. KAMALIAN (2002)

Order, Supreme Court, Bronx County (Gerald Esposito, J.), entered October 16, 2000, which granted defendant's motion for a change of venue from Bronx County to Orange County, unanimously reversed, on the law, the facts and in the exercise of discretion, and the motion denied, without costs.

In this medical malpractice action, commenced on November 1996, the motion court erred in granting defendant's motion for a change of venue from Bronx County, where plaintiff resided from the summer of 1995 until late 1998, to Orange County, where she received medical treatment from defendant from 1991 through 1995, and where she resided during that time.

 The motion, brought more than three years after the commencement of the action, and more than a year after the filing of the note of issue, was untimely (CPLR 511(a);  see also, Campos v. New York Health and Hospitals Corp., 163 A.D.2d 49, 557 N.Y.S.2d 81).   Further, a “a subsequent change of residence to another county does not invalidate the original designation based upon plaintiff's residence at the time of the commencement of the action” (Iassinski v. Vassiliev, 220 A.D.2d 372, 374, 633 N.Y.S.2d 281, 283, citing Cardona v. Aggressive Heating, 180 A.D.2d 572, 573, 580 N.Y.S.2d 285).

As to the two physician witnesses claimed to be inconvenienced by the Bronx venue, one was an employee of defendant (see, Katz v. Goodyear Tire and Rubber Co., 116 A.D.2d 506, 497 N.Y.S.2d 376), and as to the other, defendant has not satisfied the four part evidentiary requirement for convenience of nonparty witnesses (see, O'Brien v. Vassar Brothers Hospital, 207 A.D.2d 169, 622 N.Y.S.2d 284).